Christhilf v. Mayor of Baltimore

Parke, J., delivered the opinion of the Court. The appellants entered into a contract on March 31st, 1922, with the Mayor and City Council of Baltimore, to build a public highway for a certain reward. On June 1st, 1925, the appellants brought an action against the municipality for damages alleged to have been sustained by the appellants without their fault, by delay in the performance of the contract through the failure and refusal of the municipality to exercise reasonable effort and diligence to secure the rights of way on which the work under said contract was to be done. The contract was in writing and was made a part of the declaration.

The demurrer to the declaration was sustained, and the appellants declined to amend, and appealed from the judgment on demurrer. The appellants constructed the highway as they agreed, so the right of way was acquired and, since there is no charge of fraud, corruption or bad faith on the, part of the appellee, the sole ground for the action is that the municipality failed and refused to exercise reasonable effort and diligence in its securing the right of way. The contractors engaged to construct the road for the contract price according to the terms of that contract, and, having completed the ²⁰⁶ construction and been paid as promised, they now endeavor to recover a good bit of money beyond tbe agreed compensation, upon the theory that the circumstances under which they had constructed the highway were by the unreasonable inaction of the appellee rendered materially different from those which the parties had contemplated at the inception of the contract, and so the loss the contractors thus sustained was not a contingency which the parties had covered by the stipulations of the contract. The soundness of this theory hinges on what is found within the four corners of the contract.

The contractors were advised by the written instrument they signed that the appellee did) not then own the right of way upon which the appellants were to build the highway, but that it was the appellee’s intention to acquire the roadbed before the work began. The appellee, however, did not expressly agree that it would acquire the right of way before the work began, nor within any period of time, nor with what diligence it would endeavor to secure the roadway, but both the contracting parties did take into consideration the probability of not only a delay but also a failure in securing the necessary right of way. This is manifested by stipulations which relate to such contingencies, and at once provide a certain degree of protection to the contractor and total immunity for the municipality in the event of either contingency occurring. By paragraph 36 of the specifications forming a part of the contract it is agreed that “if the contractor is delayed or obstructed in the prosecution or completion of the work because of the failure or inability of the city to obtain title to, or possession of, any land or property, necessary for the prosecution or completion of the work hereunder, he shall be entitled to such an extension of time for the completion of the work as the engineer shall certify to be just and reasonable,” but “he shall have no claim or right of action against the city for damages or loss of profit for such delay or obstruction in the prosecution or completion of such work,” and he shall not be even entitled ²⁰⁷ to the extension of time mentioned unless he shall make a claim in writing therefor, written one week after the date when the cause for such extension occurred.

The term “failure or inability” is used in its most general sense, without limitation or restriction, and so includes a “failure or inability” arising from any cause, save, of course, fraud, corruption, or bad faith, and hence embraces a “failure or inability” ascribable to inaction, lack of diligence, or reasonable effort. The word “failure” has both the meaning of a failing to occur, be performed, or be produced, and of an omitting to perform something due or required. New English Dictionary, vol. 4, p.